Why Democrats’ immigration hopes rest on a decision by the Senate parliamentarian

As congressional Democrats renew their push to pass a sweeping budget reconciliation measure, the Senate parliamentarian heard arguments from both parties on Friday about whether immigration legislation should be included in the proposed $3.5 trillion package.

Democrats hope that the parliamentarian will allow a pathway to permanent residence — which could affect more than 8 million undocumented immigrants in the US — to stay in the bill, giving Democrats a chance to achieve a longtime priority without being blocked by the filibuster.

Whether Democrats’ strategy will fly depends on the interpretation of a woman whose name rarely makes headlines — Elizabeth MacDonough, the Senate parliamentarian, who interprets the rules of the Senate. MacDonough’s verdict isn’t yet known following Friday’s arguments, and she hasn’t indicated when she will issue her decision. The ruling, however, could have major implications.

If MacDonough signs off on the immigration provisions — which must have a “more than incidental” impact on the budget to make the cut — it could give 8 million undocumented immigrants the opportunity to establish legal residence in the US, a necessary step on the pathway to citizenship.

According to NBC, Democrats argued to MacDonough Friday that the immigration deal is germane to the budget since it would require $139.6 billion in additional spending on Medicare, Medicaid, child tax credits, and other federal benefits over the next 10 years.

If MacDonough deems the immigration measure extraneous to the budget bill, however, it could stymie Democrats’ plans for immigration reform. But that’s not a given; though it is rarely done, decisions by the parliamentarian aren’t binding, and Democrats could overrule MacDonough’s opinion and include immigration reform in the budget bill anyway.

If they take that route, the decision would fall to Vice President Kamala Harris. As Vox’s Dylan Scott pointed out in January, Harris is also president of the Senate, and she has ultimate authority over its proceedings.

According to Scott, however, “the vice president hasn’t overruled a parliamentarian since 1975, when Nelson Rockefeller pushed through a change to the Senate filibuster rules against the advice of the parliamentarian.”

Democrats could also potentially fire MacDonough, as Republicans did in 2001 with parliamentarian Robert Dove after then-Senate Majority Leader Trent Lott (R-MS) reportedly disagreed with Dove’s decision limiting Senate Republicans to one reconciliation process per year.

In February, Rep. Ilhan Omar (D-MN) called for MacDonough to be replaced after MacDonough ruled against including a minimum wage hike in the Covid-19 relief package.

While Senate Democrats promised to continue pushing for a $15 federal minimum wage, they ultimately dropped that provision from the Covid-19 relief package, complying with MacDonough’s ruling.

If MacDonough decides the immigration reform legislation isn’t relevant to the upcoming reconciliation package and Democrats don’t force the issue, it could be a death knell for immigration reform’s chances in a 50-50 Senate.

A Senate rule from the ’80s could determine the fate of immigration reform

The Senate parliamentarian’s involvement in the budget reconciliation process stems from something called the Byrd rule. Named for Sen. Robert Byrd of West Virginia, the rule limits what can be included in reconciliation packages.

As Vox’s Dylan Scott explained earlier this year,

Byrd proposed and the Senate codified constraints on what can be passed through budget reconciliation, to make sure the process was actually used for matters affecting the federal budget. Those constraints are now colloquially called the Byrd Rule.

Under the rule, reconciliation bills can’t change Social Security. They can’t be projected to increase the federal deficit after 10 years. They must affect federal spending or revenue — and their effect on spending or revenue must be “more than incidental” to their policy impact.

While the Budget Act of 1974 does include criteria for determining what counts as an extraneous measure, whether a proposal fits that criteria is still open to interpretation by the presiding officer.

On immigration, Republicans argue that the legislation Democrats have put forth isn’t strictly related to the budget; Democrats say that it is a budgetary concern, since immigration affects matters like benefits, spending, and the economy.

Sen. John Cornyn (R-TX), the ranking Republican on the Senate Judiciary Committee’s immigration panel, tweeted his criticism of the Democrat’s strategy on Friday, saying they “persist in pursuing partisan bills rather than bipartisan immigration reform.”

Despite reconciliation’s limits, however, the strategy has clear advantages in a polarized Senate — unlike a standalone immigration reform bill, the budget reconciliation process isn’t subject to the filibuster, and can pass with only a simple majority.

Even if MacDonough signs off on immigration provisions in the reconciliation bill, the broader measure still faces a potentially rocky future in the Senate. While he hasn’t taken issue with immigration specifically, Sen. Joe Manchin (D-WV), a frequent thorn in the side of progressive Democrats, told CNN on Sunday that he would not support a $3.5 trillion reconciliation measure. Sen. Krysten Sinema (D-AZ) has also signaled that she she won’t support the full $3.5 trillion in proposed spending.

Draft legislation for the reconciliation bill is due Wednesday, before the September 27th vote on a separate, bipartisan infrastructure bill.

On Sunday, Manchin accused his colleagues of holding the infrastructure bill hostage to the reconciliation package in an interview with ABC’s George Stephanopoulos; Senate Budget Committee chair Bernie Sanders (I-VT), however, told Stephanopoulos that both bills are urgently needed.

“I happen to think that Joe Manchin is right, physical infrastructure is terribly important,” Sanders said on Sunday. “But I happen to think that the needs of the human beings of our country, working families, the children, the elderly, the poor are even more important, and we can and must do both.”

In an evenly split Senate, Democrats would need every member of their caucus to support the package for it to pass, with Harris as the tie-breaking vote in her role as president of the Senate.

Biden has repeatedly called for a path to citizenship

If Democrats succeed in passing immigration legislation as part of the reconciliation package, it will be a major achievement for the party. Biden and congressional Democrats have previously proposed a pathway to citizenship as a standalone bill, and a July court decision declaring the Deferred Action for Childhood Arrivals program — better known as DACA — unlawful also raises the stakes of the issue.

In February this year, shortly after he took office, Biden’s US Citizenship Act of 2021 was introduced in the House. The bill proposes an eight-year process to grant US citizenship to young people brought to this country illegally by their parents before January 1, 2021, as well as people here under Temporary Protected Status, a designation that safeguards people fleeing for humanitarian reasons from countries like Haiti, Myanmar, and Syria. Agricultural workers and other essential workers would be subject to the legislation, too.

All told, according to Vox’s Nicole Narea, that bill offers a comprehensive plan for the approximately 10.5 million undocumented immigrants currently in the US to become citizens:

Initially, immigrants would be able to obtain a work permit and travel abroad with the assurance that they would be permitted to reenter the US. After five years, they could apply for a green card if they pass background checks and pay taxes. Immigrants covered by the Deferred Action for Childhood Arrivals program and Temporary Protected Status, as well as farmworkers, would be able to apply for green cards immediately, however.

That bill also proposes to address issues in immigrants’ home countries, like violence and dire economic problems, which help drive immigration to the US from Central America.

Immigration reforms included in the reconciliation bill could be narrower, according to the Hill, with a focus on allowing immigrants to apply for legal permanent residence — a green card — but no direct mention of citizenship.

Still, the measure would extend legal status to four categories of non-citizens, according to the New York Times: DREAMers, Temporary Protected Status recipients, almost one million farmworkers, and millions of “essential workers.”

There’s particular urgency when it comes to protecting DREAMers. Though the program has acted as a shield for many young immigrants since it was established in 2012, allowing them to work, pursue higher education, and sometimes access benefits like in-state college tuition and state-subsidized health insurance, depending on where they live, its future is uncertain.

Specifically, DACA is in jeopardy — again — after a federal judge in Texas ruled it unconstitutional earlier this year, freezing the program’s ability to accept new applicants and leaving hundreds of thousands of immigrants vulnerable. The Department of Justice filed an appeal in that case on Friday.

Now, with the Biden administration’s DACA appeal headed to the deeply conservative 5th US Circuit Court of Appeals and hundreds of thousands of DREAMers in limbo, lawmakers say there is more urgency than ever to passing immigration reform.

“If we don’t move, there’s a very real chance these people will be subject to deportation,” Sen. Dick Durbin (D-IL) told the New York Times.

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